[Federal Register Volume 69, Number 110 (Tuesday, June 8, 2004)]
[Rules and Regulations]
[Pages 31910-31911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12938]
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DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2002-D034]
Defense Federal Acquisition Regulation Supplement; Fish,
Shellfish, and Seafood Products
AGENCY: Department of Defense (DoD).
ACTION: Final rule.
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SUMMARY: DoD has adopted as final, with changes, an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement section 8136 of the DoD Appropriations Act for Fiscal Year
2003 and similar sections in subsequent DoD appropriations acts.
Section 8136 requires the acquisition of domestic fish, shellfish, and
seafood, to include fish, shellfish, and seafood manufactured or
processed, or contained in foods manufactured or processed, in the
United States.
EFFECTIVE DATE: June 8, 2004.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations Council, OUSD (AT&L) DPAP (DAR), IMD 3C132, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0328;
facsimile (703) 602-0350. Please cite DFARS Case 2002-D034.
SUPPLEMENTARY INFORMATION:
A. Background
DoD published an interim rule at 68 FR 7441 on February 14, 2003,
to implement section 8136 of the DoD Appropriations Act for Fiscal Year
2003 (Pub. L. 107-248). Section 8136 relates to application of 10
U.S.C. 2533a (the Berry Amendment), which prohibits DoD from acquiring
certain items unless they are grown, reprocessed, reused, or produced
in the United States. 10 U.S.C. 2533a(f) provides an exception to this
prohibition for foods manufactured or processed in the United States.
Section 8136 of Pub. L. 107-248 made the exception at 10 U.S.C.
2533a(f) inapplicable to fish, shellfish, and seafood products. The
interim rule published on February 14, 2003, amended DFARS 225.7002-2
and the clause at DFARS 252.225-7012 to add requirements for the
acquisition of domestic fish, shellfish, and seafood in accordance with
section 8136 of Pub. L. 107-248.
As a result of public comments received on the interim rule, DoD
published a proposed rule at 68 FR 53945 on September 15, 2003, to
clarify what ``produced in the United States'' means with regard to
fish, shellfish, and seafood. DoD received no comments on the proposed
rule. Therefore, DoD has adopted the proposed rule as a final rule,
with an update to the statutory reference at DFARS 225.7002-2 to
reflect the recurrence of this provision in section 8118 of the DoD
Appropriations Act for Fiscal Year 2004 (Pub. L. 108-87).
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
This rule may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. DoD has prepared a final
regulatory flexibility analysis. A copy of the analysis may be obtained
from the point of contact specified herein. The analysis is summarized
as follows:
This final rule amends the DFARS to implement section 8136 of the
DoD Appropriations Act for Fiscal Year 2003 and similar sections in
subsequent DoD appropriations acts. Section 8136 makes 10 U.S.C.
2533a(f) inapplicable to fish, shellfish, and seafood products. 10
U.S.C. 2533a(f) is an exception to domestic source requirements that
applies to foods manufactured or processed in the United States. The
objective of the rule is to prohibit DoD acquisition of foreign fish,
shellfish, and seafood, even if processed or manufactured in the United
States. The rule applies to all suppliers, processors, and
manufacturers of seafood products sold to DoD. There were no public
comments on the initial regulatory flexibility analysis. As a result of
public comments received on the interim rule, the final rule clarifies
what ``produced in the United States'' means with regard to fish,
shellfish, and seafood. The rule should have a beneficial impact on
domestic suppliers of fish, shellfish, and seafood.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
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Therefore, 48 CFR parts 225 and 252 are amended as follows:
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1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
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2. Section 225.7002-2 is amended by revising paragraph (l) to read as
follows:
225.7002-2 Exceptions.
* * * * *
(l) Acquisitions of foods manufactured or processed in the United
States, regardless of where the foods (and any component if applicable)
were grown or produced. However, in accordance with Section 8136 of the
DoD Appropriations Act for Fiscal Year 2003 (Pub. L. 107-248) and
similar sections in subsequent DoD appropriations acts, this exception
does not apply to fish, shellfish, or seafood manufactured or processed
in the United States or fish, shellfish, or seafood contained in foods
manufactured or processed in the United States.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
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3. Section 252.212-7001 is amended as follows:
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a. By revising the clause date to read ``(JUN 2004)''; and
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b. In paragraph (b), in entry ``252.225-7012'', by removing ``(MAY
2004)'' and adding in its place ``(JUN 2004)''.
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4. Section 252.225-7012 is amended as follows:
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a. By revising the clause date to read ``(JUN 2004)'';
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b. By adding paragraphs (a)(3) and (a)(4);
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c. By revising paragraph (b) introductory text and paragraph (c)(4);
and
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d. By adding paragraph (d) to read as follows:
252.225-7012 Preference for Certain Domestic Commodities.
* * * * *
(a) * * *
(3) United States means the 50 States, the District of Columbia,
and outlying areas.
[[Page 31911]]
(4) U.S.-flag vessel means a vessel of the United States or
belonging to the United States, including any vessel registered or
having national status under the laws of the United States.
(b) The Contractor shall deliver under this contract only such
of the following items, either as end products or components, that
have been grown, reprocessed, reused, or produced in the United
States:
* * * * *
(c) * * *
(4) To foods, other than fish, shellfish, or seafood, that have
been manufactured or processed in the United States, regardless of
where the foods (and any component if applicable) were grown or
produced. Fish, shellfish, or seafood manufactured or processed in
the United States and fish, shellfish, or seafood contained in foods
manufactured or processed in the United States shall be provided in
accordance with paragraph (d) of this clause;
* * * * *
(d)(1) Fish, shellfish, and seafood delivered under this
contract, or contained in foods delivered under this contract--
(i) Shall be taken from the sea by U.S.-flag vessels; or
(ii) If not taken from the sea, shall be obtained from fishing
within the United States; and
(2) Any processing or manufacturing of the fish, shellfish, or
seafood shall be performed on a U.S.-flag vessel or in the United
States.
[FR Doc. 04-12938 Filed 6-7-04; 8:45 am]
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